September 4, 2005

Bush could either nominate Roberts to be Chief Justice or elevate Scalia to Chief Justice concurrently with Roberts' nomination. The Court would not be a justice short for the two to three month period that vetting, nominating and confirming another Supreme Court nominee would take.

The suggestion would be difficult for Bush to refuse and would discredit the inevitable claim that Democrats must rush through the second nomination, because the court is still one justice short of a full bench.

It would be easy for the president to switch gears on the Roberts nomination. He could withdraw his nomination to be an associate justice and resubmit his nomination to be chief justice, lawyers and judiciary committee staffers said Sunday.

"The president can do that without almost any uncertainty because he knows how the Roberts nomination [for associate justice] has been received," said Brad Berenson, a Washington lawyer who worked for the Bush White House. "Barring something unforeseen, he would be easily confirmed for chief justice."

Berenson added: "This is the only scenario in which the court could begin the term with a full complement of justices, since Justice O'Connor pledged to stay on until her successor is confirmed."

Posted by Gary Boatwright at September 4, 2005 6:25 PM

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Comments

I'm not sure what you are saying.

The appointment of a Chief Justice requires another round of hearings. That could be combined if Roberts was named. But if it were Scalia, he would need to be confired as Chief Justice. MEanwhile the court would STILL be short a justice.

A better option would be to nominate O'Connor as CJ. She has stated that she would stay on if elevated, and that would permit a quick round of confirmation hearings. Plus it would limit Bush to one appointment. Which is why it will never happen. Which is why the Dems should suggest it.

A side benefit: If O'Connor was only CJ for a couple of years then we would get to see more of Roberts' jurisprudence in the meantime. If his wingnut side came out then we could oppose him for CJ.

Posted by: space at September 5, 2005 4:12 AM

I thought it was clear that I was suggesting that Roberts fill the Rhenquist vacancy instead of replacing O'Connor. That way the court would not still be short one justice after Roberts is confirmed, as seems likely.

Appointing Roberts Chief Justice would not require additional hearings. It could be handled in the same hearings and would immediately bring the court back up to full strength.

Posted by: Gary Boatwright at September 5, 2005 5:34 AM

When I turned on the TV news at 8 AM, Bush had already nominated Roberts to be Chief Justice. Chuck Schumer suggested yesterday that Sandra Day O'connor be nominated. Not a chance.

I think this is a political maneuver. Nothing could benefit Bush more right now than a furor over this appointment to distract attention from the death of so many citizens of New Orleans because of the total lack of aid, not only to New Orleans but to the rest of the stricken Gulf coast for so many days. Not only did the Feds not turn up, but it seems that FEMA was preventing private aid to these people. For example, Wal-Mart had truckloads of water ready to bring into the city, and FEMA turned them away. I hope we'll learn more about this kind of thing. What FEMA and Homeland Security did to New Orleans was literally criminal and they have to be held accountable.

Posted by: MJ at September 5, 2005 6:03 AM

I like the idea of putting absolutely everything on hold until Congress puts together a complete relief package for Louisiana, Alabama and Mississippi and holds oversight hearings on FEMA.

The bill they passed last week does not address the full scope of the problem by a long shot.